Gilson v. Bingham , 43 Vt. 410 ( 1871 )

' The opinion of the court was delivered by

Redfield, J.

This action is assumpsit for the non-delivery of a hearse, according to special contract. The plaintiffs contracted with defendant to manufacture and deliver at Rutland, to plaintiffs, the hearse of specific description, for the price of $210. The hearse was made and delivered to plaintiffs at Rutland, as defendant claims, fully according to the terms of the contract. The plaintiffs claim that in some things it was not fully up to what' the contract required. When the plaintiffs received the hearse they wrote defendant, saying that they were much pleased with the general proportions of it, suggesting that defendant had overlooked plating the “ ends of the nuts,”—“ also plated pins.” Varnish looked bad, but not defendant’s fault, and concludes, “ Your money is ready, though we would like to hear from you before sending.” The plaintiffs received and retained the hearse without any further intimation to defendant until the 8th of August, when they sent to defendant $200, with a bill of the cost of making the hearse what the contract called for, amounting to $15.22, saying, “ But we send you $200, trusting the above is satisfactory.”

The defendant brought a suit to recover the balance of the contract price in Franklin county; the plaintiffs opposed and defended the suit, and appealed it into the county court, but defendant recovered the ten dollars.

I. The letter from plaintiffs to defendant, on the 26th of July, 1865, contains no intimation that plaintiffs purposed to disaffirm and rescind the contract; on the contrary the letter after suggestion of some deficiencies in the performance of the contract, and commending the general style of the hearse, proceeds to inform the defendant that the “ money is ready,” indicating most evidently that they received the hearse, accepted it on the contract, and was ready to pay for it as contracted.

In case of warranty or fraud, on the sale of chattels, there is no question ; the property sold may be retained by the vendee, and the sale affirmed, yet the right of the vendee to sue upon the warranty, or for the deceit, will not be thereby affected. The warranty is an independent contract, which is purchased by the vendee, and when broken can be sued like any other violated contract. And this is alike true in case of fraud and deceit. A wrong has been thereby inflicted, and for that wrong the party injured has his redress. This contract was executory; a contract to manufacture an article of a certain kind for a stated price. There is no claim that there was warranty or fraud ; and if there were defects, they were obvious and patent. The vendee could either accept the article, and thereby become liable to pay the' stipulated price, or ho could reject it and give notice of the nonacceptauce, and bring his action, if he so elects, for the non-performance of the contract; but he cannot do both, nor can he accept it and impose conditions, and sue the other party for noncompliance with the conditions which he has imposed. While the vendor is bound to perform his contract, he has the right to the return of the article delivered, or his pay at the stipulated price.

In Percival v. Blake, 2d Car. & Payne, 514, which was assumpsit for a vat which had proved defective, Abbott, Ch. J., held, if the defects were not discovered and notice given in a reasonable time, it could not be any defense in an action for the price. And in Wilson v. Tucker, 1st C. & P., 15, Burroughs, J., says: “ If the goods supplied were not conformable to the order, the buyer must return them in a reasonable time, or he will be bound to pay for them.”

In Cook v. Giles, 3 C. & P., 408, Park, J., says, (in an action to recover the price of a threshing machine which was defective,) that “ it was the duty of defendant either to have immediately returned or given immediate notice to the plaintiff to fetch it away.” In Growing v. Wenham, 1 Stark. Ca., 257, which was an action for the price of clover seed sold by sample, the defendant was not allowed to show in defense that it was not according to sample, without proof that he offered to return the seed. The case of Kellogg v. Denslow, 14 Conn., 411, is a very thorough analysis of all the cases on this subject and very decisive authority, and we think the rule is well founded on reason and authority.

II. The case shows that on the 8th of August, 1865, the plaintiffs paid to the defendant $200, as a full payment of the price of the hearse, and notified the defendant that they retained the $10.00 as an abatement from the contract price for some deficiencies in the finish of the hearse. The defendant thereupon sued the plaintiffs for the $10, so abated and retained ; the plaintiffs appeared, defended and- appealed the case, and were finally cast in the suit. The issue in that case was, had these plaintiffs the right to retain that $10, as an abatement from the contract price ; and it was decided against them, and this suit is brought to recover back the same money which they have paid the defendant on his judgment. This perpetual oscillation, by alternate suits of parties litigant, upon the same subject matter, if sustained, would be a judicial discovery of a “ perpetual motion ” which all philosophy has failed to reach. But it is the interest of the state that litigation should cease; and when a right to property has been once put in issue and legally tried, it is in law ended. The determination of the former suit settled the right, as between these parties. It is said by the plaintiffs’ counsel, that the plaintiffs’ actual claim is $15.22, and he could not have recovered the balance due him in his defense of the former suit. But the plaintiffs voluntarily paid the stipulated price, except $10.00, and they could in no event recover back a voluntary payment. Their claim was therefore limited by their own act to $10. If these plaintiffs had sued defendant before he sued them, they could not have recovered the $10 because they had that in their own hands. They could not have recovered beyond that, because they were precluded by a voluntary payment.

This suit is therefore brought, because they have paid the $10 to defendant in satisfaction of a legal judgment. The judgment is reversed, and the cause remanded.

Our attention has been called to Carver v. Adams, 38 Vt., 500, and Gale v. Cooper, 11 Vt., 597, which decide that if a party omits to plead an offset he is not thereby precluded from collecting his demand. But there was no offset or question of offset in this case. It was a disputed claim and of one single item.